United States District Court, D. Connecticut
GREAT NORTHERN INSURANCE COMPANY a/s/o HARLAN KENT and PATRICIA KENT, Plaintiff,
BMW OF NORTH AMERICA, LLC, Defendant/Third-Party Plaintiff,
PIERBURG GMBH and PIERBURG PUMP TECHNOLOGY GMBH, Third-Party Defendants.
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
Northern Insurance Company (“Plaintiff” or
“Great Northern”), the insurer of real or
personal property owned by the insureds, Harlan Kent and
Patricia Kent (“the Kents”), has sued BMW of
North America, LLC (“Defendant, ”
“Third-Party Plaintiff, ” or “BMW
LLC”) and BMW LLC's suppliers of auxiliary coolant
pumps, Pierburg GMBH and Pierburg Pump Technology GMBH
(“Third-Party Defendants” or “Pierburg
Entities”). Great Northern's Amended Complaint
alleges negligence, strict liability, and breach of warranty.
Pierburg Entities now move to dismiss Great Northern's
Amended Complaint, as well as BMW LLC's Cross-Claim and
Third-Party Complaint against the Pierburg Entities, arguing
that this Court lacks personal jurisdiction over them.
reasons that follow, the motions are DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Kents own a 2012 BMW 750i (“BMW”), a house, and
other real and personal property. Pl.'s Am. Compl.
¶¶ 9-10. Great Northern maintains that the
Kent's BMW model was the subject of a product recall
related to an increased risk of fire because of a defective
auxiliary coolant pump. Id. ¶ 11.
February 5, 2014, the Kents allegedly returned home in their
BMW from a trip to Massachusetts, and parked their car in
their garage. Id. ¶ 12. Sometime later, the car
allegedly caught fire, and eventually the entire BMW became
engulfed in flames. Id. ¶ 14. The fire and
resulting smoke allegedly spread throughout the garage, to an
Audi A6 car also parked there as well as to a snow blower
also in the garage. Id. ¶¶ 14, 16-18. The
smoke from the burning vehicles also affected the rest of the
house. Id. ¶ 19.
investigator(s) allegedly concluded that the fire was
consistent with similar fires involving defective auxiliary
pumps. Id. ¶ 24. Great Northern alleges that
the Kents and any prior users of the BMW used the car for
reasonable, foreseeable, and intended purposes, and their
acts or omissions were neither the proximate, direct, nor
contributory causes of the fire. Id. ¶ 25.
the terms of the insurance agreement with the Kents, Great
Northern made payments in the amount of $339, 428.21, as
compensation for the damages to the house, garage, and
personal property, and in the amount of $108, 363.30 as
compensation for the damage to the cars, for a total of $447,
791.52, allegedly the full amount to which Great Northern is
subrogated at law and entitled to recover. Id.
¶¶ 9, 26. The Kents also allegedly suffered a loss
of $1, 000.00 due to the policy deductible. Id.
maintains that the Pierburg Entities are the upstream
supplier of the car's allegedly defective auxiliary
coolant pump and that the Pierburg Entities are parties to a
supplier contract with Bayerische Motoren Werke
Aktiengesellschaft (“BMW AG”), the parent company
of BMW LLC (“Supplier Contract”). Def.'s
Cross-cl. ¶¶ 5-6; see also Def.'s Third-Party
Compl. ¶ 14.
Supplier Contract includes a November 21, 1995, Warranty
Agreement between BMW AG, its associated companies, and
Kolbenschmidt AG and BMW AG. BMW's Opp'n Br. at 4.
The Warranty Agreement states:
In amending Section 14.3 of the BMW Purchasing Conditions,
the Parties agree to the following:
If one of the Contractual Partners or an indemnifiable member
of its distribution network abroad is alleged to be liable
for personal injury and/or property damage due to a
production defect (product-liability claim), then this
Contractual Partner may, at its own discretion, also assert
claims for indemnity and full or partial recourse against the
other Contractual Partner at the court of jurisdiction of the
main claim. This right also applies to the substantive law of
the respective court of jurisdiction.
Id. (quoting 1995 Warranty Agreement § 7,
BMW's Opp'n Br., Ex. A, ECF No. 68-2).
July 15, 1996, Warranty Agreement between BMW AG and Pierburg
AG similarly states:
In amending Section 14.3 of the BMW Purchasing Conditions,
the parties agree to the following:
If a contractual partner or an indemnifiable member of its
distribution network abroad is alleged to be liable for
personal injury and/or property damage due to a production
defect (product-liability claim), this contractual partner
may, at his own discretion, assert claims against the other
contractual partner for indemnity and full or partial
recourse also at the jurisdiction of the main claim. This
right also applies to the substantive law of the respective
court of jurisdiction.
Id. (quoting 1996 Warranty Agreement § 7, BMW
Opp'n Br., Ex. B, ECF No. 68-2).
July 1, 2012, Warranty Agreement-the most current warranty
agreement among BMW AG, the Pierburg Entities, and
others-contains a forum-selection clause that
Claims in connection with product liability, irrespective of
their legal basis, remain unaffected by this agreement.
Should a third party make a legal claim on BMW or a company
affiliated with BMW (§ 15 AktG, German Stock Companies
Act) for compensation for personal and/or material damage,
BMW may also take the necessary procedural steps at the
relevant place of jurisdiction in order to enforce its claims
against the Contractor. In such a case, the law applicable to
the place of jurisdiction shall exclusively apply with regard
to the parties' rights and obligations.
Id. at 5 (quoting 2012 Warranty Agreement § 7,
BMW Opp'n Br., Ex. C, ECF No. 68-2) (collectively
“the Warranty Agreements”).
the Preamble of the July 1, 2012 Warranty Agreement states
that it supersedes and replaces all prior agreements.
Id. at 6 (citing 2012 Warranty Agreement § 7).
March 22, 2015, Great Northern filed a Complaint against BMW
LLC. ECF No. 1. BMW LLC ...